July 24, 2013

The (cumbersome) question in the title of this post is my first reaction to this notable local criminal justice story coming out of Alaska, which is headlined "State puts an end to sentencing deals in serious crimes." Here are the fascinating details:

State prosecutors will no longer negotiate plea deals for lesser sentences for Alaskans accused of serious crimes and domestic violence, the Alaska Department of Law said Tuesday.

The change of policy, which took effect Tuesday, bars plea bargains involving sentences for the most serious classes of felony cases, as well as all cases involving sexual assault, sexual abuse of a minor and domestic violence, said deputy attorney general Richard Svobodny. A plea bargain is an agreement between a prosecutor and defendant in which the defendant agrees to plead guilty in exchange for a lesser charge or a more lenient sentence, avoiding a trial. Nationally, between 90 and 95 percent of all criminal cases are settled through such agreements, according to a 2011 U.S. Department of Justice study. Attorneys say the statistic is roughly the same in Anchorage.

Under the new policy, prosecutors can offer defendants the opportunity to be charged with a less serious crime. But they can't offer a deal that changes the length of a sentence. Only a judge can do that. The idea is that judges should be the ones determining sentences, not prosecutors or defense attorneys, Svobodny said.

Attorneys say the policy could flood already-stretched courts with criminal defendants exercising their right to trial and generate huge new costs for prosecution and incarceration, which would eventually be borne by the public. "It's a major decision that's going to affect system-wide daily business in Anchorage courts," said Chester Gilmore, an Anchorage defense attorney. "Our model of criminal justice initially started with judges making those sentencing decisions and it should be handed back to them," he said.

The change comes in the wake of a state review that shows prosecutors botched a 2009 plea deal involving accused killer Jerry Active. Active is the 24-year-old Togiak man accused of killing an elderly Cambodian couple -- Touch Chea and Sorn Sreap -- in their Mountain View apartment in May. He also is accused of sexually assaulting three generations of the family, including Sorn, a toddler and a 90-year-old woman. Active had spent much of his adult life in the correctional system before the killings, which took place on the same day he was released from his latest stint in jail.

A state review found that prosecutors made an inappropriately soft plea agreement with Active in a 2009 case after failing to recognize that he had already been convicted of a felony, Attorney General Michael Geraghty said in June. A judge and the Department of Corrections both failed to recognize the plea agreement mistake. The Active case became "part of the mix" in the decision to announce the new policy now, Svobodny said, although a change had been under discussion in the law department for more than a year....

Another influence was Gov. Sean Parnell's "Choose Respect" campaign. Parnell's office "worked closely" with the Department of Law on the change, said a spokeswoman.The "Choose Respect" campaign has emphasized the prosecution of sexual offenders and domestic violence perpetrators. "We feel the policy will better protect victims and ensure perpetrators are held accountable for their crimes," Parnell spokeswoman Sharon Leighow said.

Both prosecutors and defense attorneys say the rule will inevitably lead to more trials. Plea bargains aren't always appropriate but in many cases prosecutors and defendants agree they are the best way to resolve a case quickly and fairly, Gilmore said. The policy "takes away a lot of the reason anyone would have for not going to trial," he said....

In 1975, Alaska's then-attorney general banned all forms of plea bargaining. Dire predictions of system overload didn't pan out, though misdemeanor trials increased substantially in the immediate aftermath of the ban, a 1977 Alaska Judicial Council study found. A 1990 judicial council study found that the ban had eroded and the practice was again commonplace.

I suspect resourceful Alaskan prosecutors and defense attorneys will still find a way to strike sentence-impacting plea deals even in the wake of this fascinating new prosecutorial policy. Ergo, I am not sure that the state can, as a functional matter, really put an end to all sentencing deals in serious cases. More broadly, as the question in the title of my post suggests, I wonder if others question (as I do) whether this is a wise policy even if it could be practically sustained. Will rape victims and other victims of serious crimes in Alaska really be pleased to have to endure more trials and the extra burdens such trials might place on them? Will the resources the state will now likely have to devote to more trials to resolve criminal charges reduce the resources needed to fight crime in other ways in the state?

I could go on and on with philosophical and practical questions concerning what Alaska seems to be trying to do hear, but for now I will stop to hear others' reactions and thoughts about a criminal justice development that justifies watching closely in the months and years to come. Is Alaska on the verge of becoming the Last Frontier State for plea bargaining?

Comments

typical lawyer stupidity!

"A state review found that prosecutors made an inappropriately soft plea agreement with Active in a 2009 case after failing to recognize that he had already been convicted of a felony, Attorney General Michael Geraghty said in June."

So the file and record system failed to keep up with current history of a defedant. So what do the politician/lawyers do.

Fix the records system. Hell NO!

They PASS a NEW LAW!

Now me i love it! unlike the first time they tried to can all plea bargains.... back in the 1970's....this time it will blow up in their faces. Plus a shit load of cases will fall apart in the court room when the state can't back up the bullshit they usualy use to force plea bargains now!

Posted by: rodsmith | Jul 24, 2013 9:19:59 PM

The reason this policy functions in federal court is that the all-but-mandatory guidelines provide a built-in reduction in the anticipated sentence for pleading guilty.

Unless there is some built-in sentencing incentive to plead guilty, I agree that what will probably happen is an increase in charge bargaining. Sadly, I do not foresee a marked increase in jury trials. The big, unspoken secret of the American criminal justice system is that too many lawyers dread jury trials. They are stressful, time-consuming, and emotionally unrewarding experiences. Because they have the burden of proof, prosecutors have to do the most actual work, herding witnesses and marshaling physical evidence to satisfy their burden of proof. On the other side, defense lawyers have to present a credible defense in the face of dishonest cops, recalcitrant defense witnesses, and often untrustworthy clients. Throw into the mix idiosyncratic judges, whose neuroses can subsume the legal and factual disputes. Suffice it to say, if a prosecutor and defense lawyer can work a case out, they will.

Mostly, however, this aversion to jury trials will redound to the benefit of prosecutors, because while trials are a huge pain and time sink for prosecutors, they are a huge pain and time sink but also a financial black hole for criminal defendants.

Posted by: C.E. | Jul 24, 2013 11:33:33 PM

Too often , jury trials are a black hole for criminal defense lawyers.

Posted by: Just Plain Jim | Jul 25, 2013 10:23:16 AM

We imprison far too many of our citizens now. Doing away with plea deals means that more will opt for trial. This in turn means that there will be a backlog of criminal prosecutions, unless the prosecutor decides to go only with strong cases, and declines to prosecute those with little to no evidence.
Those who are in fact innocent will have no reason to plead guilty unless the prosecution tries to charge with more serious crimes and offers to drop the serious charge in favor of a lesser charge. This might be one way for prosecutors to get around the prohibition.
I feel it would be a good thing. It will, of necessity, reform much of what is wrong with the justice system as it stands today.
By the way, I am an advocate for the reform of the laws as they stand, for reduction of mass incarceration and for the elimination of the sex offender registry. I do a considerable amount of legal research every day in an attempt to assist people caught up in the justice system.

Posted by: LAMarshall | Jul 26, 2013 8:13:09 PM

A policy like this tried in the 70s or 80s. It took five years to break. What will probably happen is that there will be an uptick in jury trials in Alaska for a few months, and then the policy will go back to normal. Or there will be exceptions, and exceptions to exceptions. Lawyers will figure out ways around this ban, and life will go on.

Contrary to what some commentators say, the jury trial rate in Alaska, even before this policy was higher than the rest of the country. Basically, most Alaskan lawyers consider a jury trial to be a “treat” (because many of them came to Alaska to only do jury trials), and this policy basically plays right into their ego. I can’t speak for a lot of states, but every Alaskan lawyer I know (and I know a few dozen) salivates at the idea of a jury trial.
Two other immediate repercussions:

The other thing that might end up happening, is that there will be subtle pressure on judges to grant litigation-ending motions, as they know that this will reduce their overall workload.

Prosecutors will probably need to exercise betting screening discretion, because without discretion to deal cases (without getting specific approval), they can easily get bogged down in multiple jury trials for no apparent reason.

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